Why the Mahmood Farooqui Judgment is Deeply Flawed

Published: August 23, 2016 - 17:26
Updated: September 8, 2016 - 15:24

The sentencing of writer and dastangoi performer Mahmood Farooqui on charges of rape has raised many issues about the new law and the manner in which it is encouraging carceral feminism. Author, academician and activist Manisha Sethi has serious views on this judgement. We are publishing her article for readers who are keen to engage more with this complex, but important issue-EditorManisha Sethi Delhi

Criminal trials are not ritualised dramas. The harsh penal consequences flowing from prosecution demand that guilt is established beyond reasonable doubt. The prosecution’s case and the sequence of events it alleges must be proved to be the only one possible – and not merely one of the probabilities. This is what distinguishes courtroom proceedings from drawing room gossip – or even television chat shows. And this, we must bear in mind while discussing the Mahmood Farooqui case. Idle chatter on social media and news debates are framing the case as an apocalyptic battle between righteous feminists and evil forces of patriarchy. A television anchor hosting a show on the case made a clever editorial decision: opposite a feminist, he cast a representative of some ‘Male Protection Force’. The voice of patriarchy became the voice of all those doubtful of the conviction. It is being insinuated that any criticism of the sessions’ court judgment – and indeed the new rape laws – is tantamount to participation in ‘rape culture’. Ostensibly clinching evidence is being cited, and the Farooqui judgment is being hailed as the harbinger of a new era of justice in sexual crimes.

Facts around such cases are best discussed in courtrooms to protect the dignity of all involved, but given that the judgment and the events surrounding the alleged incident are being summoned in the public domain with such authority, it is best that those be placed in the right context.

The Emails:

First, the issue of emails, which was discussed threadbare on a TV show. It is the prosecution’s case that the complainant sent emails to Farooqui accusing him of rape. It was argued – and accepted by the court – that Farooqui’s brief reply to the complainant “my deepest apologies” is an unshakeable admission of guilt. An article on the blog Kafila analysing the verdict also said: “Perhaps the most clinching evidence supporting the survivor’s testimony is Farooqui’s own apology when confronted with his crime, and his wife’s response to the survivor’s email accusing him of rape.”

Stated this way, it does indeed appear to be so. However, does the first email, to which Farooqui replied allege rape? It professes “love”, “respect” and “attraction” for Farooqui. It says that she “went along” and “in the end consented” to avoid escalation of the situation. If one were to go by the prosecution case strictly, in her first email, the complainant says she consented but not out of free will.

Is this then the question of interpretation of that consent – freely given in the mind of the accused, and forcibly given according to the complainant? In her complaint later, she also writes that she feigned an orgasm to end her ordeal. If by her own admission she is allowing the man to think that she is actually participating in the act by pretending to orgasm then did Farooqui have any reason to disbelieve at that time – even going by the prosecution’s case –that the consent was not freely given? “My deepest apologies” is hardly an admission of guilt or crime. And then, is a man who will stop at the woman’s expression of pleasure, an unmistakeable rapist?

Also, does this email – where the complainant expresses hope that their friendship will remain unaffected by this incident – not conflict with the statement of the chief prosecution witness Danish Hussain that the complainant had earlier communicated to him, immediately after the incident, the trauma and rage at being sexually assaulted, both through WhatsApp messages and over the phone. Is it natural human conduct to express love and attraction, and hope for continued friendship when enraged? Moreover, when in her complaint later she writes that she did not resist because she was reminded of Nirbahaya’s brutal murder and feared a similar fate. Is it natural human conduct to declare love to someone who has triggered the fear of violent death in you less than 48 hours ago?

It is only in her second email, two weeks later on12th of April that she explicitly accuses Farooqui of having violated her. At this time, Farooqui was already in rehab undergoing therapy for his bipolar condition. During this period, his wife Anusha Rizvi operated his email account to keep track of their professional commitments. She came across the complainant’s second email. She was stunned to read the email and replied to it from her email account.

“I am deeply disturbed by your email. What you have described is an ordeal. I cannot imagine how you have dealt with it so far. Needless to say that I stand with you. If you require any help of any nature including legal, I will assist. This is completely unacceptable behaviour, especially for me since it happened under my roof.”

She wrote what only an extremely sensitive person would have when confronted with such an allegation. She promised her support and wished her recovery from her ordeal. How does this email become clinching evidence of Farooqui’s guilt?Farooqui was in rehab not accessing his email account; Rizvi was not in communication with him except for evening phone calls allowed by the rehab centre. Her email to the complainant was sent without speaking to her husband, as she clarifies in her second email to the complainant:

"I understand how angry you must be and therefore misread my categorical position on such matters. The reason I mentioned Bi-polar is because that is the reason why I don’t have access to Mahmood and therefore I am unable to confront him at present. "

In essence, she is a third party, with no knowledge of what transpired that evening. Her emails can have no legal bearing on the case at all. The judgment, therefore, is fatally misconceived in holding that “The scrutiny of the emails sent by the wife of the accused to the prosecutrix shows that at no point of time she has refuted the allegations of rape made by the prosecutrix against the accused. Rather she has expressed her sympathy for the plight of the prosecutrix and advised her to take appropriate action.”

Yes, indeed she sympathised, indeed she offered help; indeed she did not refute the allegations. But this shows her to be a sensitive person, willing to trust the complainant’s word even without cross checking with her husband. In fact, there was no occasion to cross check with her husband. It is a leap of legal imagination to take her email to be ‘clinching evidence’ of her husband’s guilt.

“The True Colours” of MahmoodFarooqui and AnushaRizvi

What is perplexing is Anusha Rizvi’s vilification at the hands of the prosecution. It would hardly have been easy for her to respond to an accusation of such a nature against her husband. Yet, she reached out. To this the complainant’s lawyer had this to say:

“Strangely, Anusha did not express even an iota of surprise on reading her emails describing how her husband forced oral sex on her. This leads to an inference that she was well aware of the accused’s behaviour particularly in matters related to his sexual conduct….The silence, apology and admission only imply that the accused and Anusha both knew that the accused had committed forced oral sex upon the prosecutrix. Subsequent actions of Anusha Rizvi and the accused upon learning about the registration of FIR as reflected in the CDRs revealed their true colours.”

These kinds of nebulous speculations – whether Anusha Rizvi was surprised or not, even though her emails communicate a deep sense of shock – have little legal bearing, but are significant to creating an image of the accused as a habitual offender and the wife being used to his sexual misconduct.

Contextualising the Communications

It gives me no pleasure to quote personal communication, or records of who called who and how many times, but since the entire case in the court and in public imagination now rests on such communication, it is imperative that it be placed in context.

a. The prosecution tries to construct a picture of the accused pursuing the prosecutrix. It does so by showing that he invited her home for dinner, asked her to accompany him to Gorakhpur which was her area of research (which she declined), met her in Hauz Khas, and also asked her to come home for dinner on the day of the alleged incident. First, in none of these meetings was the accused ever alone with the complainant. The first was a dinner party, with other guests and his wife present; the visit to Gorakhpur was a trip with his wife and for a show organised by the Farooqui family where family and co-actors would have been present. Gorakhpur was, moreover the place of the prosecutrix’s research and the reason for her contacting Farooqui in the first place; again the meeting at HauzKhas was in the company of others.

What this leaves out are the persistent messages and calls made from the prosecutrix to the accused, for meetings but also, on her birthday in the middle of her party to which Farooqui did not go (14th March); the day after invites him to “partake in a birthday drink” (15th March); then the following day, to her house, where she has “loads of leftover alcohol” (16th March).

Farooqui turned down each one of the invites.Therefore it is simply not true that the accused repeatedly issued social invitations to the prosecutrix and that she only contacted him for research work.

b. The Call Detail Records, in fact, negate a very crucial section of the complainant’s statement. The complaint is as follows:

“On March 28th, 2015, I called Mr Farooqui to inform him I would need tickets to his performance the next day. He invited me to his house for dinner that night. Around 4 o’clock he called me + informed we would be going to a wedding instead, with who I presumed would be his wife.”

There is no phone call or messages at all from accused to the prosecutrix on that day. In fact, there is no incoming or outgoing call on the prosecutrix’s CDRs between 2.12 pm and 6.42 pm. At about 6.20 pm, she sends him a text message asking for his address, to which he does not respond. She calls him at 6.47 pm and then again at 6.51 pm. She sends the accused another message at 8.08 pm that she has booked the cab – again receiving no response. So, on that fateful day, Farooqui does not call her even once, or reply to her messages. She calls and messages him several times.

c. While these emails, particularly Farooqui’s expression of contrition are being turned into the cornerstone of a supposedly watertight case, there is no explanation for the phone call Farooqui made to the complainant minutes after sending off the email. It is the defence’s arguments that he replied to her email after reading the first few lines as he was on the phone constantly and not paying much attention to it. (CDRs show he was on the phone until the second before the mail was sent and confirm that he certainly was on the phone when the email must have been composed). Only about an hour later when he was done with organising his day (they had a show the same day, and it was the week of ten years of celebration of dastangoi), that he read the complete email, and shocked at its contents, promptly called up the complainant. The CDRs show that he made a call to the complainant at 12.35 pm.

And yet, this phone conversation is not mentioned in her complaint, or her 164 statement. In her cross-examination, she denied the conversation and stated, “It is completely false”. It is baffling that the email sent by the accused becomes the centrepiece of evidence, but the call made by him in quick succession is elided out of evidence, and the judgment altogether.

d. The WhatsApp messages and phone calls on the night of 28th March exchanged between the complainant and the prosecution witness Danish Hussain are cited by the complainant’s counsel as evidence that “must be read together as a composite communication and a contemporaneous corroboration of the prosecutrix's testimony of rape”. It is the prosecution’s case that the complainant indicated a “sexual assault situation” when she whatsapped Danish from the house of the accused.

Here is the thread of the messages:

Complainant - Wtf

Danish Husain – What happened baby

Complainant – Mehmood baby it’s a mess

Danish Husain – Why

Danish Husain – What happened

Complainant - I’m stuck here. He told me we were going to wedding; he got super drunk Anusha left him then is back I don’t know what to do

Complainant – Dan I wish you were here

Danish Husain – What wedding baby

Danish Husain – You are stuck with Mahmood and Anusha is gone?

Complainant – I don’t know I talked to him in the and then later he said wedding I got here, and he’s crying. People are here anguish just got back. Locked in the room. I’m in the living room and can’t get a cab.

Complainant – Dan when I get in auto I need to talk

Danish Husain – You mean at his home?

Danish Husain – Wtf is happening?

Danish Husain – Who else is here?

Complainant – Yes. I don’t know two guys

Complainant – Yes at home

Danish Husain – Ok

Complainant – My uber is not working, and me won’t get me. They ordered me cab

Complainant – I’m in dress for wedding, but I just want to go

Danish Husain – And MaFa is locked in his room and crying?

Danish Husain – Where is Anusha?

Complainant – No he’s here. Anusha is locked in room

Danish Husain – Who are those two guys

Complainant – I can’t remember names

Complainant – Baby

Danish Husain – Ok

Danish Husain – Just say goodbye

Danish Husain - Leave

Complainant – I am really upset

Complainant – Ok

Danish Husain – And you will find an auto at the exit of the colony

Sun, March 29th

Danish Husain – How are you, baby?

Complainant – Better just woke up

Complainant – I have to meet someone, but I’ll talk to you in a bit

Danish Husain – Ok baby

First, these messages do not mention any sexual assault. Whatever one might read into them later, the messages make reference to many trivial things, but there is not even a hint of personal misbehaviour towards the prosecutrix.

Second, if the complainant’s lawyer was so convinced that the WhatsApp messages were unimpeachable contemporaneous evidence of rape, why was the prosecutrix reluctant to place them before the court? The production of these messages was resisted by the prosecutrix even when the Defence moved an application for a copy. It was only when the FSL was directed to produce her laptop and phone did the complainant reveal that the messages had been deleted by her ‘inadvertently’. It was demonstrated in the court by the defence counsel that deletion of a thread of messages would be a three-step act, and cannot be done by ‘mistake’. Similarly, the prosecution witness Danish Hussain too claimed that the messages had been deleted from his phone when it crashed and caused loss of all data.

Third, the judge allowed printouts of screen shots of these WhatsApp messages as ‘evidence’.This, as one will observe, is very a different standard of evidence than that applied to those witnesses who did not conform to the prosecution case.

Now, for the phone call conversation between the complainant and the prosecution witness. Danish claims that she described in detail her ordeal, including the pinning of the arms, and her resistance, as well as the invocation of her fears of being killed if she did not go along. If she had communicated to Danish her ordeal, two questions arise:

Why Danish failed to remain in touch with the complainant (as his CDRs show) after her narration of her traumatic rape? On the contrary, he maintained his relations with the accused, even sending him congratulatory message for an NDTV programme on dastangoi. It is only on 12th April, the day the complainant sends her second email (which she also forwarded to Danish) that he calls her.

Why the complainant adopts a different tone in her first email to Farooqui, which is at odds with her purported conversation with Danish.

The answer is perhaps that she never conveyed to Danish that she had been raped on the night of 28th. His subsequent statements are a reproduction of the email she had sent to Farooqui on 12th April where she first vividly described a specific act, and which she had forwarded to Danish.

The neutrality of Danish Husain that is being extolled by the world consists of failing to call the victim and extending warm appreciation to the perpetrator!

And what of the subsequent conduct which apparently revealed their true colours?

The prosecution argued that “the deletion of the email by AnushaRizvi as coming in the statement of the accused u/s 313 statement amounts of destruction of evidence and proves the complicity with the accused.”

Firstly, the court threw out all charges of destruction of evidence at the beginning of the trial so it serves no purpose to continue to trump them up repeatedly. Second, when the accused and his wife presented themselves at the police station upon hearing of the complaint being filed, and they, voluntarily, handed over the printouts of these emails to the police. This is hardly “destruction of evidence”. When we are being asked to abandon all questions regarding the inconsistencies in the conduct and statements of the complainant and the key prosecution witness, on the grounds that those traumatized by sexual violence may behave in inexplicable ways, how sensitive is it to damn the accused’s wife – dealing as she was with a husband in a rehab facility and an ailing father in the ICU, who passed away soon after.

Influencing the victim:

An article whose author claimed closeness to both the accused and the complainant has stated that the accused and his wife exerted pressure on the complainant to withdraw her complaint. The prosecutrix’s lawyer has argued on similar lines in the court, and this allegation is repeated in the Kafila piece. On social media, this has acquired a life of its own, embracing within its ambit even the defence lawyer, who stands accused of attempting to engineer a ‘compromise’.

Towards this, the testimony of Danish Hussain, and his SMS and call records on the intervening night of 19-20 June 2015, are being touted as evidence.

According to the Kafila article:

“SMS records showed that on the intervening night of the 19-20 June the wife of the accused Anusha Rizvi sent two SMS to Danish; one, on 20.6.2015 at 1:44 a.m, said “need to speak urgently. Very urgent” and another at 3:30 a.m said “Dan whatever we need to do will need to be done now. Thanks. Danish testified that he had been sleeping and saw the messages (one from Anusha’s and another from Darrain’s number) and called Darrain back. Danish testified that Darrain “handed over the phone to Anusha where they asked me if I can get in touch with the prosecutrix and intervene so that she does not press charges.” He testified that he did then “call the complainant on which the complainant became very angry and said after the trauma she has gone through, she would not withdraw her complaint. She disconnected the phone, and I remember later that she called me back and reiterated the same which I conveyed to the wife of the accused and the accused the next morning.”

a. What is so unnatural about calling up your old acquaintance and friend upon hearing the news that he is named as a confidante in a case against you, especially since he has never hinted to you that anything was amiss?

b. So, if Danish called up the complainant at the behest of Darain Shahidi and Anusha Rizvi, why is it that his CDRs show that it was, in fact, the prosecutrix who called him first and spoke to him for 12 minutes? It was only later that he called her.

c. Nowhere in his statement under Section 161Cr.PC, does Danish Hussain mention the attempt to influence the complainant, and neither does the complainant make this charge in her statement before the magistrate. Even by the prosecution’s claim, there was no request made for any intervention before the night of 19th June. By this time, the FIR was already lodged. How would it have been possible to withdraw the complaint once it was lodged?

d.Most important of all, the prosecutrix herself denies any communication at all from Farooqui or his wife after 15 April. Indeed, she resolutely states in her statement to the Magistrate on 20 June that no one tried to influence her in anyway before filing the case.

e. DarainShahidi has denied the vague charges being made that he or Anusha Rizvi tried to influence the complainant through Danish’s intervention. Why did the prosecution not examine him on this aspect, so that it could come in the evidence? Why allow such a charge to circulate as mere rumour and not crystallise it as evidence of a frank confrontation with the man who was supposed to have carried this influence to Danish Husain? In court records what stands unchallenged is Darain’s denial that he ever made any attempt to persuade the complainant to not implicate the accused.

Why was the testimony of Ashish Singh discarded?

Some evidence has not come on record. Like Ashish Singh’s text message to his wife “Back to Mahmood’s place with Roomi, will take sometime” sent at 10.02 pm (the time alleged by the complainant that she was alone with the accused), and where his tower location shows 12, SukhdevVihar (under which falls the accused’s house) has been dismissed as not credible. Sure, the court gives a reason for discarding his testimony. The question is if this reasoning meets legal standards.

The evidence of the text message is discarded on the grounds that he had failed to give his mobile phone to the police initially. The judgment notes:

“I fail to understand what had prevented him from giving his mobile phone to the police to prove his veracity as to his coming in the house of the accused before the incident to prove the innocence of the accused. It is also to be noted that the said instrument was not sent to the laboratory for its authenticity. He introduced the facts of coming to the house of the accused before 10.00 p.m for the first time when he appeared in the court for evidence.”

First, one must bear in mind that Ashish was a prosecution witness, not a defence witness. What beats logic is why a friend would conceal something so crucially in Farooqui’sfavour at such an early point in time if he were so partisan in Farooqui’s interest. It could have shaken the very basis of the charge.

Then, he had indeed told the police that he was out for only 15 minutes. The prosecutrix’s own case is that Ashish left soon after she reentered the drawing-room some 20 minutes after she had arrived, which would make it about 9.20-9-30. Ashish’s CDRs also show his exit around that time. Where then is the concealment?

The court holds that this SMS “does not imply that he had reached the house of the accused, or he was inside the accused’s home.It cannot be conclusively held that PW12 Ashish Singh was in the house of the defendant at the time of the alleged call.”

This assertion by itself does not discredit the claim that Ashish was indeed present in the house. The text message, as well as the tower location, cannot just be explained away by the court’s observation that it was not established that he was present in the house. What is there to disprove the fact of the message and the tower location?

Timing and the possibility of the alleged rape

The judgment holds that:

“Thus, the incident happened between the time from 22:09:04 to 22:11:47 which is the period of 2 minutes and 43 seconds…. There is no reason to disbelieve the claim that the said act as described by the prosecutrix on the part of the accused took place within the time frame as discussed by me above.”

Concurring with the judgment, the Kafila piece tries to defray commonsensical understanding of rape as “a long-drawn-out, dramatic affair involving physical injury is what we are led to believe by popular culture. In reality, even two minutes is a long time – more than enough for a man to pin a woman down, pull down her underwear and force oral sex on her.”

They probably did not carefully read the prosecutrix's own statement as to what ensued between 22:09:04 and 22:11:47. Between this period, the accused and the complainant are said to have chatted “for a while”, cracked jokes; the complainant is said to have rubbed/ ruffled his hair. In her cross-examination too, she accepts “conversation of a few minutes”; exchanging of jokes “later” as well as some discussion on her research. He is then said to have attempted to kiss her repeatedly. It is after that that the act of forced oral sex is said to have taken place; following this the doorbell rings, the accused goes to open the door, the complainant goes into the kitchen and observes Ashish and Roomy enter, returns to the living room and books a cab on her Meru App at 22.11.47.

The point is not to recall and deconstruct crude characterizations of sexual violence in popular culture but to ascertain the possibility of what is being alleged. Is it within the realm of the possible that all this – as stated by the complainant herself – could have taken place in the given period? We are after all discussing a criminal trial and evidence, on which depends the course of someone’s life and liberty.

Post script:

The Mahmood Farooqui trial was not to determine the definition of rape. Forced oral sex has already been incorporated into the definition of rape in the Criminal Law Amendment 2013. We did not need Farooqui’s ‘landmark’ trial to establish this. What was on trial was whether there was conclusive proof of Farooqui’sguilt. The defence too operated within the existing framework of the law. Quoting sundry commentators (a la Mehrotra) or lawyers who distinguish between ‘real’ and ‘unreal’ rape on television is to tarnish the Farooqui defence by allusion and insinuation.

Yes, there is deep disquiet over the new law, both on account of the minimum sentencing rules and the expanded criminalisation it entails. There is as well a critique of carceral feminism and its unspoken alliance with a punitive state. But that calls for another reflection, unburdened by the specifics of this case.

The sentencing of writer and dastangoi performer Mahmood Farooqui on charges of rape has raised many issues about the new law and the manner in which it is encouraging carceral feminism. Author, academician and activist Manisha Sethi has serious views on this judgement. We are publishing her article for readers who are keen to engage more with this complex, but important issue-EditorManisha Sethi Delhi